Friday, January 19, 2007

When law students ask me what was my greatest case in the 25 years that I was a trial lawyer, I tell them that during the 1967 race riots in Newark, New Jersey, a group of lawyers was organized to represent African-Americans who were arrested during the riots, and I was among those who volunteered. I represented a man who had been swept up with a group of rioters and looters, spent 5 days in prison without being able to tell his family where he was, 7 days without legal representation and a total of 15 days before he had a hearing. At the hearing, he testified that at the time he was arrested, 5 A.M. in the morning (during a curfew) he was waiting for a bus---the same bus that he had taken for the last 16 years to go to his job. Although surrounded by the riots and the fires, he did not want to miss a day's work, because he needed the money to support his family. He was acquitted and released. That was my finest hour.

No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.

By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.

The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?

There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.